Cole v. Swanston

Appeal from the court of First Instance of the district of San Francisco. The plaintiff, through his agent M. Dore, sold to the defendants on the 21st day of December, 1849, fifty thousand three hundred and twenty-five feet of lumber, then being, or supposed to be, on board of a ship in the harbor of San Francisco. The contract was in the form of a sale note, of which the following is a copy :—-

“ Sold Messrs. Swanston & Taylor, 50,325 feet lumber, ex Duchess Clarence, for account Captain Cole, ® $150 per M.

“ 21st Dec. 1849. M. Doee.”

A portion of the lumber, amounting to 12,958 ft. -was delivered to the defendants, and the balance of the cargo, being only 17,649 ft., w-as sold by Captain Cole, on account, as is claimed, of the purchasers, at the price of $760,72. That was the only lumber which Captain Cole owned, and the whole quantity on hoard the Duchess Clarence ; and at the time the sale was made to the defendants, the plaintiff, instead of having lumber to dispose of to the amount of 50,825 ft., the quantity called for by the sale note, he had only 30,607 ft.

No time or place was agreed upon for the delivery of the lumber at the time the sale note was made, although the course of conduct of both parties showed clearly that it was in their contemplation, that the plaintiff should deliver the lumber to the defendants in lighters at the side of the vessel. The quantity which was received by the defendants, was delivered in this manner.

The evidence shows that the defendants, on several occasions after the delivery of the 12,958 ft., sent lighters ont to the vessel for portions of the balance, but were unable to procure any more. Several letters passed between the parties, in which the plaintiff, on his side, complained that the defendants did not remove the lumber, and the defendants, on their part, that they were desirous of receiving it, and had sent for it several times, but were unable to get it. Matters continued in this situation until the 14th day of January, 1850, when the defendants addressed a note to the plaintiff, in which they say, that in consequence of the delay and expense incurred in delivering the lumber, they should not receive any more, and that they should bold the plaintiff responsible for the expenses incurred by the non-delivery, and also for the damages which might be recovered against them in two actions about to be brought against them by purchasers of portions of the lumber from them, as also for their profits on such re-sales.

On the 21st day of January the plaintiff addressed a note to the defendants, in which he gave them notice, that unless they removed the lumber within two days, he should proceed to sell the same at public auction, and should hold them responsible for all loss, damage, and expense, which he should sustain in consequence of their default in carrying out their contract of purchase. This letter was answered by the defendants the next day. In their answer they sent an account: of the damages which they claimed to have sustained by reason of the non-ful-filment of the contract on the part of the plaintiff and notified him that an action liad been brought against them for non-delivery of a portion of the lumber by a purchaser to whom they had sold, and that they should hold the plaintiff responsible for any damages which should be recovered against them.